Citation Nr: 9805867
Decision Date: 02/27/98 Archive Date: 03/20/98
DOCKET NO. 95-18 759 ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Winston-Salem, North Carolina
THE ISSUE
Entitlement to service connection for an innocently acquired
psychiatric disorder.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARINGS ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Roberto D. DiBella, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1978 to March
1981.
This appeal arises from a March 1995 decision by the RO.
REMAND
The veteran contends that his recently diagnosed psychiatric
condition had first manifested itself in service after he had
been mistreated by his superiors. The veteran was discharged
from service under the provisions of Chapter 9, Army
Regulation 635-200, for being an alcohol rehabilitation
failure. A mental status evaluation, conducted prior to his
discharge from service on February 23, 1981, noted no
significant illness, and that the veteran was mentally
responsible. The veteran did report at the time of his
separation examination, on February 12, 1981, that he had had
“[d]epression or excessive worry.” The first psychiatric
diagnosis of the record was not shown until the veteran was
hospitalized from October 6, 1993 to October 21 1993 for
atypical depression. However, the veteran testified at his
personal hearing in August 1995 at the RO that a department
head at Fayetteville VA Medical Center (VAMC) had told him
that his current psychiatric condition had had its onset in
service. The Hearing Officer did not instruct the veteran at
the time his testimony to obtain a statement from this
physician.
The VA does not have a statutory duty to assist a claimant in
developing facts pertinent to a claim which is not well-
grounded. 38 U.S.C.A. § 5107 (West 1991 & Supp. 1997). See
also Boeck v. Brown, 6 Vet.App. 14, 17 (1993) and Grivois v.
Brown, 6 Vet.App 136, 140 (1994). However, if the claimant’s
application for benefits is incomplete, the VA shall notify
him of the evidence necessary to complete the application.
38 U.S.C.A. § 5103(a) (West 1991 & Supp. 1997). An
application is incomplete if the VA is put on notice of the
likely existence of competent medical evidence that would, if
true, would be relevant to, indeed, necessary for, a full and
fair adjudication of an appellant’s claim. Robinette v.
Brown, 8 Vet.App. 69, 77 (1995).
The veteran was involuntarily separated from service, and, at
the time of his separation, he had complained about having
“[d]epression or excessive worry.” Therefore, the Board of
Veterans' Appeals (Board) is of the opinion that a medical
opinion attributing the veteran’s current psychiatric
condition to his problems in service is relevant and
necessary for, a full and fair adjudication of the veteran’s
claim. In addition to the Hearing Officer inaction in this
case, the claims folder contains no record of the RO
informing the veteran to obtain this opinion. Thus, under
the circumstances of this case, the Board is of the opinion
that the RO has been put on notice that relevant evidence
exists, or could be obtained, which, if true, would make the
veteran’s claim “plausible;” and the RO failed to assist
him pursuant to the provisions of 38 U.S.C.A. § 5103(a) of
informing him to provide this information. Robinette, 8
Vet.App. at 80.
Furthermore, the evidence of record does contain an October
1994 Administrative Law Judge’s decision awarding Social
Security disability benefits for severe alcoholism,
depression and a personality disorder; however, the medical
records which purportedly supported this decision have not
been associated with the file. As part of the VA’s
obligation to review a thorough and complete record, the VA
is required to obtain evidence from the Social Security
Administration, including any decisions by the administrative
law judge, and to give that evidence appropriate
consideration and weight. Hayes v. Brown, 9 Vet.App. 67, 74
(1996). Consequently, a remand is appropriate under the
facts of this case.
To ensure full compliance with due process requirements, the
case is REMANDED to the regional office (RO) for the
following development:
1. The RO should take the appropriate
steps to contact the veteran in order to
have him provide copies of, or releases
for, all private medical records which
pertain to any treatment that he has
received for a psychiatric disorder since
his discharge from service. This should
include pertinent VA treatment records,
which have not already been associated
with the claims folder. He also should
be asked to submit any medical evidence
which tends to support his position that
any current innocently acquired
psychiatric disability had its clinical
onset in service or, otherwise, is due to
other disease or injury which was
incurred in or aggravated by service.
This should include requesting him to
provide a statement from the VA physician
who had attributed his current
psychiatric condition to service. Any
documents received by the RO should be
associated with the claims folder.
2. The RO should also obtain the records
pertinent to the veteran’s claim for
Social Security disability benefits as
well as the medical records relied upon
concerning that claim.
3. After the development requested above
has been completed, the RO should again
review the veteran’s claim. Any
indicated development should be
undertaken. If the benefit sought on
appeal remains denied, the veteran and
his representative should be furnished
with a supplemental statement of the case
and given the opportunity to respond
thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The veteran need take no action unless
otherwise notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1997) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
STEPHEN L. WILKINS
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1996).
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